The New, Very Real Peril of Sharing Music or Movie Files by Computer
Dear Mom and Dad,
The semester started really well! I have a nice roommate, my classes are great and the food in the dining halls is wonderful.
Oh, just one little problem… I’ve been sued by the Recording Industry Association of America. I only had 200 songs on my computer that I downloaded with Kazaa but they sued me for $150,000 each. I heard they might settle for a lot less than $30 million, though. That is such a relief! Can you get ready to send your life savings to them? Sorry I messed you guys up and destroyed my sister’s plans. Everyone is doing it and I never thought they would pick on me but they did……
There are many misperceptions about copyright law, fair use, music and movie file sharing, and the implications of infringing copyright. One thing is certain: The situation has changed a great deal since last spring. Anyone who is using peer-to-peer (P2P) software like Kazaa, eDonkey, Gnutella, Limewire, etc. to download music and/or video files in violation of copyright restrictions now faces potentially enormous financial costs. College students are being sued for copyright infringement involving P2P applications; and their families are having to pay settlement amounts of well over $15,000 just to avoid the even larger cost of going to court, even if the suit is successfully defended much, less the implications of losing in court.
For several years the Colby administration has provided warnings to students about the legal issues associated with music and video copyright and the criminal and civil penalties that might result from the use of computers to infringe copyright limitations on the distribution and possession of copies of the digital content.
It is now absolutely imperative to understand the risks associated with sharing music and movies with others using the network, not only for your well being but also for the financial well being of your family who will probably bear the brunt of the effects of your being sued.
What is Copyright?
The US Constitution authorizes Congress to establish laws respecting copyright:
The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Tymes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
United States Constitution, Article I, Section 8
The Library of Congress web pages on copyright ( www.copyright.gov/circs/circ1.html ) provide this general overview of copyright law:
“Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works… Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
Reduced to its basic element, copyright means you are prohibited from making a copy of a work (text, image, recording, musical score, movie, etc.) without permission of the owner, especially if you sell or give away the copy.
The details of copyright law are complex and interpretation is sometimes controversial, especially what constitutes “fair use” in an academic setting for research and class use or for personal use. For commercial products such as music CDs and movie DVDs, the law prohibits copying unless the owner of the copyright has specifically given permission. For example, I purchased a Sony Music CD that has the following notice: “Warning: All rights reserved, including all rights of the producer and of the owner of the recorded work. Unauthorized copying, public performance, broadcasting, hiring or rental of this recording prohibited, as provided by applicable law.”
- Am I permitted to use my computer to burn a copy of this CD to give to someone else? No.
- Am I permitted to use my computer to burn a copy of this CD for my own use so I can keep the original CD in a safe place? Yes, this is generally interpreted to be permitted under Fair Use.
- Am I permitted to convert the tracks of this CD to MP3 files and send them by email to my friends? No.
- Is my friend permitted to distribute copies of the MP3 files because there is no displayed copyright notice or prohibition on copying? No.
- Am I permitted to convert the tracks of this CD to MP3 files so I can play them on my MP3 player instead of playing the original CD? Yes, this is generally interpreted to be permitted under Fair Use.
- Am I permitted to loan this CD to my friends for a fee (i.e., rental)? No.
- Am I permitted to sell this CD to my friend? Yes, but I may not keep a copy.
When you buy a book, CD, DVD or other medium, you do not own the content. You own the right to access the content yourself but not to copy it for others to use as well. The right to copy and distribute the content is usually explicitly retained by the owner of the copyright, usually the author/composer/performer or their agent or distributor. Not all copyrighted content has a prohibition on copying. The owner of the copyright may explicitly give permission for individuals to copy and distribute the content. This is common for promotional items and for demonstration versions. However, commercial products rarely provide this authorization. An unlabeled copy of content, such as an MP3 file, that you should reasonably know is derived from a commercial product must not be received (downloaded) or copied.
Colby’s Policies on Copyright
Members of the Colby community are expected to obey the law. Because of the power of information technology to quickly and massively infringe copyright, the Code of Ethics for Information Technology at Colby College explicitly prohibits “theft, including the illegal duplication of copyrighted material, or the propagation, use, or possession of illegally copied software or data.” [www.colby.edu/info.tech/policies]
Peer-to-Peer (P2P) Applications
The communication capability provided by the Internet enables any computer to share information directly with any other computer anywhere in the world on the network. These are “peer” computers that are communicating, rather than servers being accessed by individual client computers as in systems like the web and email. Applications like Kazaa, Gnutella, Limewire, Morpheous, eDonkey and many others have become popular because they can be used to find and access files created from commercial products like CDs. MP3 audio track files and MPG and AVI video files are commonly made available through these applications. These files are created by making digital copies of the original content and then made available for access through the P2P application. Those who create the original copies and make them available for access by others have violated copyright law (“infringed the rights of the copyright owner”). Those who access and make their own copies of those files have violated copyright law. Those who, in turn, make their illegal copies available for others to copy using the P2P applications are violating copyright law.
The computer technology available for making digital copies of CDs, DVDs and other products, as well as the communication infrastructure of the Internet and P2P applications have created a vast resource for illegally sharing copyrighted content. The only barrier to using this resource is the recognition that it is illegal to use the P2P capability to make copies of the content in the files. Educational efforts by representatives of the copyright owners and by Internet Service Providers such as colleges like Colby have been unsuccessful in reducing the use of P2P applications to steal content by violating copyright law.
An important aspect of the P2P application environment is that anyone might use it and anyone’s network address can be determined. Consequently, the copyright owners themselves or law enforcement officers may use the applications and other tools to determine who is distributing files that infringe copyright or violate other laws. There is no anonymity on the Internet. Although College policy prohibits monitoring individual computer use for content, it should be assumed that communication on the Internet is being monitored by someone outside the College.
The Digital Millennium Copyright Act (DMCA)
The DMCA refines copyright law in light of the new capabilities of digital computers and networks and provides a mechanism for protecting companies from legal consequences of the illegal activities of their clients/customers. Colby is a network provider and the individual students, faculty, and staff are the clients/customers.
A copyright owner may submit a complaint to the network provider in which a specific network address is determined to be providing content in violation of their copyright. The network provider must do what is necessary to have the content removed and, if there is a repetition of the violation, the responsible individual’s access to the network must be terminated.
In the past 18 months, Colby has received about 45 complaints under the DMCA. Many students in our community have experienced the unpleasant process that takes place when a complaint about their computer occurs. Fortunately, this is almost always the end of the process and the student’s name has never been divulged to the copyright owner as a result of the complaints Colby has received.
DMCA procedures at Colby are found here: www.colby.edu/info.tech/policies
Recent Legal Action
Having been unsuccessful in stemming the flood of copyright violation occurring with P2P applications using education and the basic mechanism of the DMCA, the Recording Industry Association of America (RIAA) began taking direct legal action against individuals last spring by using subpoenas to obtain the names of people who are responsible for the computers sharing large numbers of music files. Four students at three academic institutions were named in lawsuits filed last spring. Although sued for millions of dollars, the students and their families settled out of court for over $15,000 each. One reason they settled may have been that the cost of defending oneself in court in such cases is enormous. These settlements, while far less than the original amount sought in the suit, drained the families’ savings accounts and perhaps meant second mortgages on the homes of the students’ parents. The RIAA has been processing hundreds of new subpoenas over the past few weeks and, with the opening of the school year, we can expect many to be sent to colleges and universities demanding the names of individuals doing the file sharing.
It should be obvious to everyone that the hypothetical peril of sharing copyrighted material through P2P applications over the Internet or even just within the institution is now a very real peril. It should also be obvious that the consequences can have catastrophic effects on the family of the individual who is accused of committing the crime.
What Should You Do To Protect Yourself?
Each person is responsible for what is done with the computer under their control. You should remove any P2P application and don’t let anyone install software on your computer. Even if you are “only” downloading files, you are still violating the law.
There are no excuses for trafficking in stolen property (file sharing of copyrighted content). Complaints about the cost of CDs and slowness of the industry to adapt to technology just don’t cut it. If you think a good defense will be that “everyone is doing it,” you should start thinking about what an example you will make when you are sued and everyone else just experiences the fear that it might happen to them too.
I cannot provide legal advice but I can help with general questions about copyright law and how it needs to be considered in P2P and other information technology situations. Feel free to send me email at email@example.com.
Raymond B. Phillips
Director of Information Technology Services, Colby College
Aug. 15, 2003